Last week, both the U.S. House of Representatives and Senate took actions that may have a significant effect on labor and employment law.
Senate Confirms Peter Robb
On November 8, 2017, the Senate confirmed President Trump’s nominee for NLRB General Counsel, Peter Robb. Robb is a longtime management-side labor and employment attorney. He previously served as an NLRB field attorney and Chief Counsel to a former NLRB member. Robb also litigated President Reagan’s firing of the Air Traffic Control Association members in 1981.
Robb’s confirmation is important because it confirms the change at the NLRB. The General Counsel controls the agenda by setting NLRB policy and instructing the regional offices on the handling of cases and which issues to pursue and prioritize. Robb’s management-side background signals a significant departure from his more pro-employee predecessor.
With the addition of Robb and the new Republican-appointed NLRB members, more employer friendly policies and decisions are expected from the NLRB.
Save Local Business Act
On November 2, 2017, the House of Representatives advanced the Save Local Business Act. The relevant portion of this Act would amend the definition of joint employer under the National Labor Relations Act and the Fair Labor Standards Act to require that the employer exercise “direct control” over an employee to be considered a joint employer.
In 2015, the NLRB issued the Browning-Ferris decision in 2015 which expanded the Board’s definition of a joint employer to include employers who exercised indirect control over employees. In addition, the Obama-era DOL issued guidance which significantly broadened the interpretation of a joint employer. The current DOL rescinded this guidance in June.
This Act is Congress’s attempt to return the joint employer definition to the pre-Browning-Ferris standard. The Senate is expected to introduce a companion bill, and the bill has a realistic chance of passing. We will keep you updated on any developments.